IN THE CASE OF: BOARD DATE: 16 August 2016 DOCKET NUMBER: AR20150003988 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING _____X___ ___X_____ ___X_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 16 August 2016 DOCKET NUMBER: AR20150003988 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ____________X_____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. IN THE CASE OF: BOARD DATE: 16 August 2016 DOCKET NUMBER: AR20150003988 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: The applicant defers to counsel. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests, in effect, approval of the applicant's Traumatic Servicemembers’ Group Life Insurance (TSGLI) claim. 2. Counsel also requests a teleconference with the Army Board for Correction of Military Records (ABCMR) and asks that the Board schedule a time and date for this conference to take place. 3. Counsel states, in effect, the TSGLI office denied payment of the applicant’s claim and subsequent appeals for the loss of activities of daily living (ADLs) for 60-120 days. The finding is not consistent with the statements and medical reports that were submitted. As such, the decision was in error and an injustice. The ABCMR should reverse the decision of the TSGLI office and award the applicant TSGLI benefits. The denial of the applicant's request is unjustified in light of uncontroverted statements of the applicant, his spouse, medical personnel, and the evidence in the medical records indicating the applicant required assistance to perform at least two of his ADLs. Assistance with dressing, eating, bathing, and transferring is apparent and clear for 120 days in light of the numerous traumatic injuries sustained from a long and traumatic fall while on duty. The U.S. Army Human Resources Command (HRC) ignored or unjustifiably discounted the statements and medical records without evidence to the contrary, which is arbitrary and capricious, and the United States District Court ruled as such. 4. Counsel provides the applicant's DD Form 214 (Certificate of Release or Discharge for Active Duty) and a compact disk containing 737 documents, which include: * Exhibit A - numerous medical records dated between 21 September 2012 and 12 March 2014 * Exhibit B - letter from Txxxx Bxxxx, Registered Nurse (RN), Bachelors of Science in Nursing (BSN), dated 10 April 2014 * Exhibit C - statement from the applicant, dated 11 April 2014 * Exhibit D - statement from the applicant's spouse, dated 11 April 2014 * Exhibit E - SGLV 8600 (Application for TSGLI Benefits), dated 10 April 2014 * letter from Counsel to HRC, dated 11 April 2014 * letter from the HRC Special Compensation Branch (TSGLI) to Counsel/the applicant, dated 22 July 2014 * letter from Counsel to HRC, dated 28 July 2014 * letter from HRC, Office of the Adjutant General to Counsel/the applicant, dated 11 November 2014 * letter from Counsel to HRC, dated 2 December 2014 * Power of Attorney, dated 20 February 2014 * letter from the HRC Special Compensation Branch (TSGLI) to Counsel/the applicant, dated 15 December 2014 CONSIDERATION OF EVIDENCE: 1. After having previous enlisted service, the applicant enlisted in the U.S. Army Reserve (USAR) on 14 November 2005. His records show he entered active duty on 7 August 2012. 2. A DA Form 2173 (Statement of Medical Examination and Duty) shows he was admitted to the Scott and White Memorial Hospital, Temple, TX, on 16 September 2012. This form shows the applicant was on top of a Tricon container unhooking the lifting chain from the M984 wrecker when another Soldier pulled the M984 wrecker forward with the chains attached, tilting the container and throwing the applicant to the ground. He broke his femur, elbow, and suffered other injuries during this fall. Medical personnel stated the applicant sustained a closed intertrochanteric fracture (hip fracture of the proximal or upper part of the femur or thighbone) and an elbow/forearm/wrist injury "NOS" (not otherwise specified). His chain of command and medical authorities indicate his injuries occurred in the line of duty (LOD). 3. The TSGLI Branch received an initial TSGLI application for a $25,000.00 other traumatic injury (OTI) hospitalization and 30 day ADL loss on or about 29 October 2012 and approved the application on 11 November 2012. 4. The 81st Regional Support Command, Fort Jackson, SC, issued a memorandum, subject: LOD Determination [Applicant], on 29 March 2013, stating the LOD finding for the applicant's "right hip fracture and right radial head fracture injury that occurred on 16 September 2012" was approved. 5. Counsel provided a discharge summary from Reliant Rehabilitation Hospital showing the applicant was admitted to this hospital on 21 September 2012. This record also shows: a. History of Present Illness: The applicant "fell off a high object [on 16 September 2012] one day prior to his admission at Scott and White Hospital. He was brought to the emergency room where x-rays were taken showing fractures of the right intertrochanteric femur and right mason 3 radial head. He had shooting and sharp pain. The patient underwent ORIF [open reduction internal fixation] of the right intertrochanteric fracture with intramedullary nailing and ORIF of a right radial head fracture on [17 September 2012]. This was done by [Dr. Dxxxxx Sxxxx] at Scott and White Hospital... The [applicant] had major deficits in terms of his functional mobility and his ADLs. Therefore he was referred for a multidisciplinary inpatient rehabilitation." b. Hospital Course: (1) "The [applicant] was admitted to an acute inpatient rehabilitation bed. OT [occupational therapy] and PT [physical therapy] were initiated. Eventually, he was cleared for aquatic therapy. The [applicant's] pain was controlled on p.r.n. [abbreviation meaning "when necessary" (from the Latin "pro re nata", for an occasion that has arisen, as circumstances require, as needed)] Norco [a pain medication]. His incision sites healed well, and his staples were removed." The applicant suffered some blood loss because of his surgery and developed acute blood-loss anemia, which was resolved with iron supplements. He had issues with urinary retention, which was controlled with Flomax. He also had issues with constipation, which was resolved on a bowel regimen. "The [applicant] did well from a medical standpoint thereafter. However, he remained at [the] facility pending further disposition, as ordered by the Army." (2) "At the time of his presentation to [the] facility, the [applicant] was modified independent with eating. He was independent with expression and memory. He required [minimal assistance] with grooming and hygiene, as well as bladder management. He was [modified assistance] with upper body dressing, bowel management, and bed mobility. He was [maximum assistance] with lower body dressing." 6. Counsel provided a Standard Form (SF) 600 (Chronological Record of Medical Care), issued by the Darnell Army Medical Center, Fort Hood, TX, on 15 November 2012. This form shows his case manager (from the Warrior Transition Unit Management Clinic, Darnell Army Hospital) states, on 15 November 2012 he "visited the [applicant] at the [Reliant Rehabilitation Hospital]. He was progressing well. He was in good spirits, denied [suicidal ideation and homicidal ideation]. He was well-groomed, ambulating with a walker and at times with a cane only... He was participating in therapy... He complained of minimal pain that was relieved with Norco. His wife had traveled back to Florida to stay with their children. Continuing to work on [his] transfer to Florida." 7. The discharge summary from Reliant Rehabilitation Hospital that counsel provided states in the section marked "Hospital Course" that "At the time of his discharge the [applicant was] modified independent with bed mobility, transfers, and ambulation. He [was] able to ambulate from his room to the gym with a cane. He was felt to be ready for discharge and arrangements were made for the [applicant] to be discharged back to Florida per the Army's arrangements. He remained in stable condition. The applicant was discharged from the Reliant Rehabilitation Hospital on 9 December 2012" (emphasis added). 8. Counsel provided eight SFs 600 showing he received treatment at the Dwight D. Eisenhower Army Medical Center, Community Based Health Care Organization-Florida (CBHCO-FL) in an outpatient status on 10 December 2012. These medical records state: * his initial risk assessment was green * he received a temporary profile with a level 3 rating in the "U" (Upper Body) and "L" (Lower Body) PULHES (U-3 and L-3) and his temporary profile expiration date was 10 March 2013 * he would require extensive ongoing rehabilitation, like that which he previously attended * he would require 6 months of medical care and he was not able to use public transportation 9. Counsel provided numerous SFs 600, which show the applicant was seen for outpatient care: a. On 14 December 2012, the Naval Branch Health Clinic, Naval Air Station (NBHC NAS) Jacksonville, FL, received a customer service call indicating the applicant was in the WTU assigned to Orlando, FL, and needed a wheelchair. The NBHC NAS placed a referral for the applicant's wheelchair. b. On 17 December 2012, a provider at CBHCO-FL stated the applicant "continues to report discomfort and difficulties with ADLs. [He] received [a] referral for a wheelchair... [The applicant is] also requesting [a] referral to receive a shower chair... [The applicant] denies experiencing new medical... issues at this time." c. On 19 December 2012, a provider at NBHC NAS Jacksonville noted the applicant was awaiting a medical board. The provider also noted the applicant was in a wheel chair but was able to stand for short periods. d. On 26 December 2012, a provider at CBHCO-FL stated the applicant "continues to report discomfort and difficulties with ADLs...[but] denies experiencing new medical...issues at this time." These notes also indicate that his providers were considering initiating a Medical Evaluation Board (MEB). e. On 3 January 2013, a provider at CBHCO-FL stated the applicant "continues to report discomfort and difficulties with ADLs. [The applicant] reports receiving [a wheelchair] to assist with daily activities...[and] denies experiencing new medical...issues at this time." f. On 7 January 2013, a provider at NBHC NAS Jacksonville stated the applicant "currently uses wheelchair [and a] 4-point cane for ambulation...[and his] pain is well controlled with Norco...[He] continues to report discomfort and difficulties with ADLs….[But he] denies experiencing new medical...issues at this time." g. On 15 January 2013, a provider at the NBHC NAS Jacksonville Physical Therapy Clinic stated the applicant arrived at his appointment in a wheelchair. The applicant reported using a wheelchair for mobility for long distances and ambulating short distances with a narrow-base 4-point cane. The provider indicated that the applicant's fall risk was minimal. h. On 16 January 2013, a provider at the NBHC NAS Jacksonville Orthopedic Clinic stated the applicant arrived at his appointment in a wheelchair. The applicant reported using a wheelchair for mobility for long distances and he used a narrow-base 4-point cane for ambulating short distances. The provider indicated the applicant's fall risk was minimal. The applicant "reports that he is weight bearing as tolerated... However, he does report weakness of the right leg especially when getting into a shower. A review of the history, physical, and radiographic studies reveals the [applicant] is 4 months out from a right intertrochanteric femur fracture status post septal medullary nail, and 4 months out from a right radial head fracture status post [ORIF], and right distal radius fracture treated nonoperatively. He appears to be rehabilitating and improving as expected. His weight bearing status is improving and he is weight bearing as tolerated with a crutch... At this time he should continue doing physical therapy and he should start occupational therapy for strengthening of the hip and thigh muscles in addition to gait training and weaning from the crutch." 10. The evidence of record shows he submitted a TSGLI application wherein he claimed the loss of four ADLs for 120 days. The TSGLI Branch received this application on or about 11 November 2013, and denied this application on 10 January 2014. 11. Counsel provided a letter, dated 11 April 2014, addressed to HRC, TSGLI Branch. Counsel states the applicant retained him to appeal HRC's denial of his TSGLI claim. Counsel outlined the incident that resulted in the applicant's injuries, and stated that x-rays confirmed fractures of the right femur, right pelvis, right elbow, right wrist, and three right ribs. He referred to an independent review of the applicant's medical records, conducted by Txxxx Bxxxx, a Registered Nurse (RN), who thoroughly outlined the applicant's inability to perform four ADLs and addressed the medical treatments and timelines for his inability to perform these ADLs. Counsel ended his letter by requesting that the HRC TSGLI Branch award the applicant $75.000 under number 20 of the TSGLI schedule of losses for a traumatic injury resulting in the applicant's inability to perform at least two ADLs for a period greater than 90 days. Counsel submitted the following documents as part of the applicant's appeal: a. Counsel provided an SGLV 8600, dated 10 April 2014, which shows: (1) Part A (Member's Claim Information Authorization), (Traumatic Injury Information) shows, "On [16 September 2012] in Fort Hood, TX, [applicant] was disconnecting lifting chains from a shipping container when another [Soldier] unexpectedly pulled the container, which threw [applicant] to the ground. The incident resulted in a broken femur, broken hip, fractured pelvis, broken elbow, three broken ribs, and a fractured wrist. He also had pins inserted in his leg, hip, and elbow." (2) Part B (Medical Professional's Statement), 2 (Impatient Information), shows the applicant indicated the reason for his impatient hospitalization was OTI and indicated he was transported and admitted to the first hospital on 16 September 2012. He was discharged from the last hospital on 9 December 2012. He further indicated he was admitted to: (a) Coryell Memorial Hospital, Gatesville, TX (b) Scott and White Hospital, Temple, TX (c) Reliant Rehabilitation Hospital, Round Rock, TX (3) Part B, 3 (Qualifying Losses Suffered By Patient) (Inability to Independently Perform ADLs) shows he was unable to independently perform ADLs due to an OTI. "On [16 September 2012], [the applicant] suffered serious injuries when another [Soldier] moved the container he was standing on while unhooking a lifting chain causing him to fall 8 feet to the cement. He was immediately transported to Coryell Memorial Hospital, Gatesville, TX, for emergency care. He suffered multiple fractures. X-rays confirmed fractures of the right femur, right pelvis, right elbow, right wrist, and 3 right ribs. He was transferred to Scott and White Hospital, Temple, TX, for more extensive care. Surgery was performed on [17 September 2012] by [Dr. Dxxxxx L. Sxxxx], M.D. to include...[ORIF] of right intertrochanteric femur and right Mason II radial head fracture. He was hospitalized for 3 months in Reliant Rehabilitation Hospital, Round Rock, TX, from 21 September through 9 December 2012 for intensive impatient rehabilitation due to his inability to perform ADLs. Once discharged and at home, his wife...assisted him with bathing, dressing, and transferring for a period of over 30 days..." (4) Part C, 3, shows the applicant indicated he was unable to independently perform the ADL of bathing from 16 September 2012 through 24 January 2013 because he required physical assistance (hands-on) and stand-by assistance (within arm's reach). This form states he required assistance getting in and out of the shower, washing, and toweling dry due to his inability to move his right leg and arm. (5) Part C, 3, shows the applicant indicated he was unable to independently perform the ADL of dressing from 16 September 2012 through 24 January 2013 because he required physical assistance (hands-on) and stand-by assistance (within arm's reach). This form states he required assistance threading his right arm through his shirt due to the limited mobility of his right arm and putting on and taking off his pants due to his inability to lift or abduct his right leg. (6) Part C, 3, shows the applicant indicated he was unable to independently perform the ADL of toileting from 16 September 2012 through 24 January 2013 because he required physical assistance (hands-on) and stand-by assistance (within arm's reach). This form states he required assistance getting to and from the bathroom. His wife had to help set him down on the toilet and pull his pants up and down. (7) Part C, 3, shows the applicant indicated he was unable to independently perform the ADL of transferring from 16 September 2012 through 24 January 2013 because he required physical assistance (hands-on) and stand-by assistance (within arm's reach). This form states he required assistance to wheel him around in the wheel chair. Once he began to ambulate with a walker/cane, he required stand-by assistance to ensure he did not fall. (8) Part B, 5 (Medical Professional's Comments), states, "during his rehabilitation in the hospital, [the Applicant] required hands-on and stand-by assistance from his wife and medical staff to bathe, dress, toilet, and transfer. [The Applicant] was discharged from the rehabilitation hospital to the care of his wife... on [9 December 2012. He required daily assistance from his wife to bathe, dress, toilet, and transfer up until at least [25 January 2013]..." (9) Part B, 6 (Medical Professional's Information), shows the medical professional who completed this form was a Registered Nurse (RN), Txxxx Bxxxx. (10) Part B, 7 (Medical Professional's Signature), shows Txxxx Bxxxx, RN, indicated the applicant was capable of handling his own affairs and that she did not observe the applicant's loss, but she did review his medical records. She signed this form on 10 April 2014. b. Counsel provided a letter from Txxxx Bxxxx, RN, BSN, dated 10 April 2014, wherein she states she reviewed the medical records the applicant provided as they relate to his traumatic fall at Fort Hood, TX on 16 September 2012. (1) A review of the applicant’s medical records confirm that he suffered serious injuries when another Soldier moved the container he was standing on while unhooking a lifting chain causing him to fall 8 feet to the cement on 16 September 2012. He was transported to Coryell Memorial Hospital, Gatesville, TX for emergency care. He suffered multiple fractures. X-rays confirmed fractures of the right femur, right pelvis, right elbow, right wrist, and three right ribs. (2) He was transferred to Scott and White Hospital, Temple, TX, for more extensive care. Dr. Dxxxxx L. Sxxxx, MD performed surgery on 17 September 2012, to include ORIF of the right intertrochanteric femur fracture and right Mason II radial head fracture. (3) He was transferred to Reliant Rehabilitation Hospital, Round Rock, TX, on 21 September 2012 for intensive inpatient rehabilitation due to his inability to perform ADLs. The applicant remained in the rehabilitation hospital until 9 December 2012. While in the hospital, he received hands-on and stand-by assistance from his wife and medical staff to bathe, dress, toilet, and transfer. In patient records noted physical impairments of weakness, limited range of motion, unsteadiness, and increased pain with movements requiring moderate assistance to perform ADLs and putting him at a high risk for falls. (4) The applicant was discharged from Reliant Rehabilitation Hospital to the care of his wife on 9 December 2012. He was issued a wheelchair on 14 December 2012. He was unable to walk, lift, or abduct his right leg. He was unable to use his right arm to propel his wheelchair; he required assistance from his wife to push the wheelchair. He began to improve slowly over the next few weeks; however, he still required moderate assistance from his wife to bathe, dress, toilet, and transfer. Physical therapists documented his need for physical and stand-by assistance with close supervision, because he remained at risk for falls. (5) The applicant's need for assistance with ADLs continued from the time he was admitted to the rehabilitation hospital on 21 June 2012 up until at least 25 January 2013. Once discharged from the hospital, the applicant's wife continued to assist the applicant with ADLs. Continued immobility, weakness, loss of range of motion in the right leg and right arm impeded his ability to bathe, dress, toilet, and transfer on his own without physical and stand-by assistance. He remained at a high risk for falls. (6) Outpatient physical therapy was not started until 24 January 2014. Physical therapists continued to note the applicant needed assistance with ADLs until March 2013. Therapy continued for months. The applicant was released from occupational therapy for his right arm on 27 June 2013. He was discharged from physical therapy for his right leg on 20 August 2013. Dr. Cxxx R. Fxxxxxx, Orthopedic Surgeon, his treating physician, stated he observed the patient's loss of ADLs (bathing, dressing, toileting, transferring) up until 25 January 2012, on the original TSGLI Part B (Medical Professional's Statement), dated 24 April 2013 [not provided for review]. (7) In January 2014, the applicant failed retention standards. He is currently waiting on a Department of Veterans Affairs (VA) rating and is soon to be medically retired as a result of his injuries. c. Counsel provided a declaration from the applicant, dated 11 April 2014, wherein he states he sustained serious injuries at Fort Hood, TX after falling 8 feet from a Tricon container on 16 September 2012. He suffered fractures of the right femur, right pelvis, right elbow, right wrist, and three right ribs. Doctors performed surgery on 17 September 2012, to include ORIF of his right femur and right elbow. Medical personnel transferred him to the Reliant Rehabilitation Hospital where he spent the next 2.5 months. During that time, he could not bathe, dress, toilet, or transfer without the assistance of his wife and hospital staff. The hospital discharged him to the care of his wife on 9 December 2012. He was in a wheelchair for the first few weeks. He could not wheel himself, because he could not move his right arm. His wife and kids would wheel him around. He could not go up or down the stairs. His wife physically helped him bathe, dress, toilet, and transfer up until at least 25 January 2013, when he started using the walker and the cane and his wife stood by to make sure he did not fall. (1) Bathing: His wife would bear hug him and practically carry him into the shower and lower him down onto the shower chair. It was hard to bend over, practically impossible. His wife would help him wash and towel dry. (2) Dressing: He could dress his upper body but could not raise his arm. His wife would help him get his arm through his shirt. She had to put his pants on because he could not bend his leg. (3) Toileting: His wife would bear hug him to lower him down on the toilet. She would come back when he was done to pull up his pants. He could raise himself, but she had to help lower him down. (4) Transferring: When he was in the wheelchair, which was most of the time for the first few weeks at home, his wife and kids would wheel him around. Otherwise, he would just go in circles because he could not lift his right leg or use his right arm. d. Counsel provided a declaration from the applicant's wife, dated 11 April 2014, wherein she states her husband sustained serious injuries from a fall at Fort Hood, TX, on 16 September 2012. He fractured his right femur, right pelvis, right elbow, right wrist, and three right ribs. He had surgery on 17 September 2012 and he was in the hospital until 9 December 2012. He needed help with bathing, dressing, toileting, and transferring for months. Once he was home from the hospital, she assisted him with his ADLs on a daily basis, until at least 25 January 2013. He was in a lot of pain when he got home from the hospital. She had to drive him where he needed to go and cut his food for him, because he could not do it for himself. Even when he was in the hospital, she helped him with the bedpan and the urinal. She was there to help him with everything. She missed 18 months from work as a teacher and had to give up her job. The school she worked for had to replace her because she did not know how long she was going to have to take care of the applicant. (1) Bathing: She had to get the applicant in and out of the shower, sit him down on the shower chair, wash him, and towel him dry. She could not leave him in the shower alone because she had to make sure he was safe. (2) Dressing: The applicant was unable to bend his arm so she had to put his shirts on and take them off for him. She also had to put on and take off his underwear, pants, shoes, and socks because he could not bend his leg. (3) Toileting: She had to pick up the applicant, sit him on the toilet, and come back when he was done to help pull his pants up. (4) Transferring: When the applicant was in the wheelchair, he was not capable of doing anything for himself. He could not lift his leg or extend his arm. She had to wheel him around. Once he was able to use the walker and the cane, she stood by to make sure he did not fall; and he was not able to walk very far. She had to help him get in and out of the car. 12. The TSGLI Branch received the second application for reconsideration on 14 April 2014. 13. His record contains a DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) showing a PEB convened on 25 April 2014 and found the applicant physically unfit and recommended a rating of 40 percent (%) and that his disposition be permanent disability retirement based on the following medical conditions: a. The PEB rated his condition of degenerative joint disease, right hip status post open reduction ORIF intertrochanteric fracture, limitation of abduction at 20%, his condition of right elbow, status post-surgery (dominant) limitation of flexion at 10%, and his condition of right wrist fracture, status post-surgery (dominant) at 10%. The PEB stated these conditions began on 16 September 2012 because of an injuries he suffered when he fell from a shipping container that was being prepared for deployment at Fort Hood, TX. Despite medication, surgery, physical therapy, and occupational therapy these impairments persist. b. The applicant’s conditions are unfitting because the applicant could not perform the duties of his MOS. His MOS requires him to lift and carry heavy tools and maintenance equipment, as well as heavy repair parts. His physical limitations prevent him from performing these tasks. He could not perform the basic common Soldier tasks such as carrying or firing his assigned weapon and evading direct and indirect fire. He could not wear his load bearing equipment with body armor in an austere environment. The applicant could not perform any of the events of the Army Physical Fitness Test (APFT). The applicant was unfit for duty because his conditions, at the time, prohibited him from performing his assigned duties. c. The PEB rated his conditions of degenerative joint disease, right hip status post ORIF intertrochanteric fracture, limitation of extension at 0%; his degenerative joint disease, right hip status post ORIF intertrochanteric fracture at 0%; and his right elbow fracture, status post-surgery (dominant) limitation of extension at 0%. The PEB stated his condition began on 16 September 2012 because of an injury the applicant suffered when he fell from a shipping container that was being prepared for deployment at Fort Hood, TX. Despite medication, surgery, physical therapy, and occupational therapy the impairment persists. His condition was unfitting because the applicant could not perform the duties of his MOS. His MOS required him to lift and carry heavy tools and maintenance equipment, as well as heavy repair parts. His physical limitations prevented him from performing these tasks. He could perform the basic common Soldier tasks such as carrying or firing his assigned weapon and evading direct and indirect fire. However, he could not wear his load-bearing equipment with body armor in an austere environment. The applicant could not perform any of the events of the Army Physical Fitness Test (APFT). The applicant was unfit for duty because his condition, at the time, prohibited him from performing his assigned duties. 14. Orders Number 188-0010, issued by Headquarters, Third Infantry Division, Fort Stewart, GA on 7 July 2014 assigned him to the Fort Stewart Transition Center with a reporting date of 27 July 2014. These orders also released him from assignment and duty because of a physical disability incurred while entitled to basic pay under conditions that permitted retirement for permanent physical disability effective 27 July 2014 and placement on the retirement list on 28 July 2014 with a 40% disability. 15. The TSGLI Branch denied the applicant's second application for reconsideration on 21 July 2014. 16. The HRC TSGLI Branch sent the applicant a letter, dated 22 July 2014, informing the applicant the TSGLI Branch rendered a decision in his case and was unable to overturn the previous adjudication. This letter explains: a. The applicant was previously awarded $25,000 for hospitalization and loss of ADLs for 30 days for the event, which took place on 16 September 2012 in TX. However, according to the TSGLI guidelines, these losses cannot be combined for payment. The medical documents submitted did not indicate the applicant was incapable of performing the ADLs of toileting, dressing, bathing, or transferring for greater than 60 days, which was the next milestone required for further payment, per TSGLI guidelines. b. Documents from the Reliant Rehabilitation Hospital indicates the applicant was independent or modified independent with ADLs by 2 November 2012 (Prior to day 60). If a Soldier is able to perform the activity by the use of accommodating equipment/adaptive measures (such as a personal digital assistant, cane, crutches, wheelchair, etc.), then the Soldier is considered able to independently perform the activity. c. Medical documentation does not indicate the member's loss met the TSGLI minimum standard for ADL loss for 60 days or greater. 17. His DD Form 214 shows he was honorably retired by reason of a permenant disability on 27 July 2014. 18. Counsel provided a notice of disagreement, dated 28 July 2014, addressed to HRC, TSGLI Branch, wherein he argues that HRC failed to reference the applicant's inpatient hospitalization claim. Counsel states the applicant was hospitalized at the Reliant Rehabilitation Hospital from 21 September to 9 December 2012. Counsel further states the Reliant Rehabilitation Hospital discharge summary specifically states: "The patient had major deficits in terms of his functional mobility and ADLs. Therefore, he was referred for a multidisciplinary inpatient rehabilitation" (emphasis in original). This document clearly states the "Admin Date" and "Discharge Date" as 21 September 2012 and 9 December 2012. Counsel concludes that the applicant was admitted for inpatient hospitalization over 60 days, and as such is entitled to the remaining maximum benefit of $75,000. 19. The TSGLI Branch received the second application for reconsideration on 28 July 2014, and denied the reconsideration on 18 November 2014. 20. The HRC TSGLI Branch sent the applicant a letter, dated 11 November 2014, informing counsel/the applicant that the TSGLI Branch received the applicant's appeal request. The letter stated, that after reviewing the claim and supporting documentation, HRC approved the applicant's claim for losses of ADLs for 60 days and certified his claim for an additional $25,000. However, the HRC did not approve the applicant's claim beyond 60 days. This letter explains: a. Rehabilitation documentation dated 2 November 2011, indicates the applicant was dependent or modified independent with all the basic ADLs, except for needing supervision for transfers (sit to stand, bed, and car transfers). The applicant's discharge documentation and the ADL worksheet from the Reliant Rehabilitation Hospital indicate he was modified independent with bed mobility, transfers, and he was ambulating with a cane prior to the 90-day milestone. b. According to Army TSGLI program guidelines, if a patient is able to perform the activity by using accommodating equipment (such as a cane, walker, and commode) or adaptive behavior, the patient is considered able to independently perform the activity. 21. Counsel requested that HRC again reconsider the applicant's TSGLI claim in letter dated 2 December 2014. Counsel indicated he reviewed HRC's letter, dated 11 November 2014, and he was submitting this letter to request reconsideration on the partial approval of the applicant's TSGLI benefits. Counsel stated (emphasis in original): a. He and the applicant took specific disagreement with the position that the applicant was ADL independent on 2 November 2011 sic (2012), "except for needing supervision for transfers (sit to stand, bed, and car transfers)." b. Clearly, a limitation to sit, stand, and bed transfers, at a minimum creates an inability to toilet independently under the TSGLI definition of patient is unable to toilet independently if he/she requires physical, standby, or verbal assistance from another person to go to and from the toilet, get on and off the toilet, clean self after toileting, or get clothing on and off before and after toileting. "If [the applicant] needed supervision to sit to stand, and transfer from the bed, clearly that indicates he needed physical, or at a minimum, standby assistance from another person to go to and from the toilet and/or get on and off the toilet. This is a second ADL where [the applicant] required physical and stand-by assistance." c. Further, a sit to stand and bed transfer limitation that requires assistance creates an inability to bathe independently under the TSGLI definition of "Patient is UNABLE to bathe independently if he/she requires physical, standby, or verbal assistance from another person to bathe more than one part of the body (via tub bath or sponge bath) or get in or out of the tub or shower." "If [the applicant] needed supervision to sit, stand, and transfer from bed, clearly that indicates he needed physical, or at minimum, standby assistance from another person to get in and out of the tub or shower. This is a third ADL where [the applicant] required physical and/or stand-by assistance." d. Presumably, and last, a sit to stand and bed transfer limitation creates an inability to dress independently under the TSGLI definition of "Patient is unable to dress independently if he/she requires physical, standby, or verbal assistance from another person to get and put on clothing, socks, or shoes (may have help tying shoes)." "If [the applicant] needed supervision to sit to stand, and transfer from bed, clearly that indicates he needed physical, or at minimum, standby assistance from another person to get and put on clothing, socks, or shoes. If he could not get out of bed without assistance, then certainly he could not get and put on clothing, socks, or shoes. This is a fourth ADL where [the applicant] require physical and/or stand-by assistance." e. The aforementioned limitations have been outlined in detail by the applicant and his ADL provider and wife. In addition, to overcome the documents provided in the 28 July 2014 appeal, counsel submitted statements from the applicant and his wife. These statements serve a sharp contrast to the position that the applicant was ADL independent on 2 November 2011 sic (2012) "except for needing supervision to (sit, stand, bed, and car transfer)." The statements are also in tune with a more reasonable position that if the applicant cannot get out of bed or stand on his own, then he cannot do at least one of three things without at least stand-by assistance - to go to and from the toilet, to get on and off the toilet, to get in or out of the tub or shower, and to get and put on clothing, socks, or shoes. f. In light of the foregoing, counsel requested that HRC review the statements provided with the claim, appeals, records previously provided, and the TSGLI procedures guide, and provide the remaining benefit of $50,000 because the applicant's ADL limitations required physical or stand-by assistance of over 120 days. 22. The HRC TSGLI Branch responded to counsel's request for a third reconsideration in a letter dated 15 December 2015. This letter informed counsel/the applicant that: a. HRC received the applicant’s TSGLI appeal request. However, HRC's records indicated the TSGLI Appeals Review Panel received the most recent claim, which is the highest level of appeal within the TSGLI office. b. Additionally, the subsequent submission, received on 2 December 2012, contained no new and substantive evidence, nor were any new losses certified which had not been previously reviewed. c. HRC referred counsel/the applicant to the Army Review Boards Agency, as there was no further administrative relieve that HRC could provide. 23. The HRC TSGLI program manager provided an Appeal Summary showing: a. The TSGLI branch received an initial TSGLI application for a $25,000 (OTI) hospitalization and 30 day ADL loss on or about 29 October 2012, and approved the application on 11 November 2012. b. The second TSGLI application shows he claimed the loss of four ADLs for 120 days. (1) The TSGLI branch received the second application on or about 11 November 2013, and denied this application on 10 January 2014. (2) The TSGLI branch received a request for reconsideration on 14 April 2014, and denied the request for reconsideration on 21 July 2014. (2) The TSGLI branch received the second request reconsideration on July 2014, and denied the request for reconsideration on 18 November 2014. c. The appeal summary for the second TSGLI application contains a physician write-up. The physician states: (1) The applicant was injured in a fall from height. He sustained fractures of the right wrist, elbow, pelvis, and right femur, all surgically repaired. He also suffered from amnesia due to acute blood loss. After medical stabilization, he underwent inpatient rehabilitation. At the time of discharge on 9 December 2012, the applicant was noted to be modified independent with bed mobility, transfers, and ambulation. He was ambulatory with a cane. There is no mention of bathing or toileting ADLs. CBHCO/WTU (Community Based Health Care Organization/Warrior Transition Unit) records consistently note over the next month that the [applicant] reported discomfort and difficulty with ADLs along with decreased range of motion of the right elbow. ADLs were not listed among the short-term or long-term goals at the initial PT assessment on 15 January 2013." (2) There was sufficient data presented supporting the claim of continuous loss of ADLs to the 60-day milestone. There is evidence suggesting that the Soldier had adopted adaptive behaviors to accomplish some ADLs in a modified independent manner by the 90-day milestone. It is not clear that the applicant was modified independent in all ADLs by the 90-day milestone. Subsequent outpatient notes document "difficulty" if not "inability" to perform all ADLs modified independent. (3) The physician recommended that the benefit of the doubt weigh in favor of the applicant for approval of OTI ADL loss (bathe, dress, toilet, and transfer) for 90 days. The physician states that ongoing ADL impairment to the 120-day milestone is highly speculative. d. The following discussion addresses the applicant's second application for OTI ADL loss. (1) On 23 October 2012 (27 days after the OTI), rehabilitation and occupational therapy documentation state the applicant used assistive devices (a reacher, sock aid, and a long handle shoehorn) to don shoes and socks. (2) On 9 November 2012 (55 days after the OTI), medical documentation from the rehabilitation facility stated the applicant was independent or modified independent in all ADLs, except for needing supervision for transfers (sit to stand, bed, and car transfers). At day 55 from his OTI the applicant needed supervision for transfers. Transfers, in accordance with the TSGLI Guide, covers transfer from bed to chair, toilet (get on and off), bathe (get in or out of the shower). Therefore, the applicant had three ADLs at day 55, day 61, and day 68 that could also be applied to the TSGLI standard. (3) On 29 November 2012 (75 days after the OTI), rehabilitation documents show the applicant was independent or modified independent in performing all ADLs. (4) On 9 December 2012 (85 days after the OTI), rehabilitation discharge documentation states, at discharge, the applicant was modified independent with bed mobility, transfers, ambulation, and that he was ambulating with a cane. Bathing and dressing were not addressed in the discharge documentation. (5) On 18 December 2012 (96 days after the OTI), medical documentation states the applicant was having discomfort and difficulty with ADLs and was in need of a shower chair (accommodating equipment). (6) On 16 January 2013 (123 days after the OTI), medical documentation states the applicant was at minimal risk for falls. (7) On 22 January 2013 (129 days after the OTI), medical documentation states the applicant continued to report difficulty with ADLs. (8) On 4 March 2014 (170 days after the OTI), medical documents state the applicant reported having trouble with ADLs and mobility, requiring moderate assistance from his spouse. e. The review panel voted 4 out of 5 to recommend benefit of the doubt approval of the appeal for OTI ADL for 60 days because documentation indicated the applicant still required supervision for transfers at days 55, 61, and 68. At day 75, the applicant was independent or modified independent 15 days prior to the 90-day milestone. One panel member voted to approve ADL loss for 120 days due to upper and lower extremity injuries and documented fall risk beyond the 120-day milestone. The HRC Command Surgeon Team (Chief and Deputy) attended as voting members. HRC denied the applicant's claim. REFERENCES: 1. Public Law 109-13 established the TSGLI Program. The TSGLI Program was established by Congress to provide financial relief to Soldiers and their families after suffering a traumatic injury. TSGLI payments are designed to help traumatically injured service members and their families with financial burdens associated with recovering from a severe injury. TSGLI provides between $25,000 and $100,000 to severely injured Soldiers who meet the requisite qualifications set forth by the Department of Defense. To be eligible for payment of TSGLI, service members must meet all of the following requirements: * must be insured by SGLI when the service member experiences a traumatic event * must incur a scheduled loss and that loss must be a direct result of a traumatic injury * must have suffered the traumatic injury prior to midnight of the day the service member is separated from the uniformed services * must suffer a scheduled loss within 2 years (730 days) of the traumatic injury * must survive for a period of not less than 7 full days from the date of the traumatic injury 2. A qualifying traumatic injury is an injury or loss caused by a traumatic event. The HRC official TSGLI website lists two types of TSGLI losses, categorized as Part I and Part II. Each loss has a corresponding payment amount; however, only Part II losses are pertinent to this case. Part II loss includes traumatic injuries resulting in the inability to perform at least two ADL for 30 or more consecutive days and hospitalization due to a traumatic injury and other traumatic injury resulting in the inability to carry out two of the six ADL, which are dressing, bathing, toileting, eating, continence, and transferring. TSGLI claims may be filed for loss of ADL if the claimant is completely dependent on someone else to perform out two of the six ADL for 30 days or more. ADL loss must be certified by a healthcare provider in Part B of the claim form and ADL loss must be substantiated by appropriate documentation such as occupational/physical therapy reports, patient discharge summaries, or other pertinent documents demonstrating the injury type and duration of ADL loss. While TSGLI claims won't be approved without certification from a healthcare provider, additional documentation must be provided to substantiate the certification. 3. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR will decide cases on the evidence of record. It is not an investigative body. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. Additionally, applicants may be represented by counsel at their own expense. DISCUSSION: 1. Counsel's request for a teleconference with the ABCMR was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the Board, and a teleconference is, in effect, a personnel appearance. Hearings and, similarly, teleconferences may be authorized by a panel of the Board or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant and his counsel was sufficient to render a fair and equitable decision. 2. The evidence of record shows that HRC paid the applicant's TSGLI claims for hospitalization and the 30 and 60 day milestones. Furthermore, after much deliberation, HRC decided to pay the applicant’s TSGLI claim to the 90-day milestone. This last payment was not truly based on clear and definitive evidence that the applicant was incapable of performing at least two ADLs, but rather that evidence suggested he may have had difficulty or an inability to perform at least two ADLs. Since the medical records were unclear, HRC decided to give the applicant the benefit of the doubt and approved the claim for the 90-day milestone. 3. The discharge summary from the Reliant Rehabilitation Hospital, issued 85 days after his injury, on 9 December 2012, states that "At the time of his discharge the [applicant was] modified independent with bed mobility, transfers, and ambulation. He [was] able to ambulate from his room to the gym with a cane" (emphasis added). 4. On 17 December 2012, medical notes indicate he received referrals for a wheel chair and a shower chair. He began using a wheel chair for mobility for long distances and his walker for short distances. 5. Medical records indicate he expressed difficulty with some of his ADLs but never noted that he was unable to perform two or more of the ADLs in the period between the 90-day milestone and the 120-day milestone. 6. The applicant claims that he was unable to perform the ADLs of bathing, toileting, or transferring, however, there is no evidence that, with modified behavior/adjustments he was or would have been unable to perform the ADLs of bathing or toileting in a modified independent manner. At most, he may have required assistance with transferring. 7. Other than the statements of the applicant and his spouse, and a registered nurse who did not observe his loss, there is insufficient evidence to conclusively show an inability to perform two or more ADLs after the 90-day milestone, either independently or modified independently. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150003988 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150003988 18 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2